Plumber Gas Fitter and Drainlayer Board v Maitland [2019] NZDC 6211 (2 April 2019)

Last Updated: 26 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT CHRISTCHURCH I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2018-009-008574

[2019] NZDC 6211

PLUMBER GAS FITTER AND DRAINLAYER BOARD

Prosecutor v

GRANT MAITLAND Defendant

Hearing:	2 April 2019
Appearances:	D Shivani for the Prosecutor C Yardley on behalf of C Eason for the Defendant
Judgment:	2 April 2019

NOTES OF JUDGE T J GILBERT ON SENTENCING

[1] Mr Maitland is for sentence on one charge of doing restricted sanitary plumbing work without the appropriate registration. The charge is laid under s 123(1)(a) Plumbers, Gasfitters, and Drainlayers Act 2006. The maximum penalty is

$10,000. Mr Maitland, himself, has not come to sentencing today and he is not required to because it is a category 1 offence.

[2] I have been provided with an agreed summary of facts. It records that Mr Maitland was a director of GJA Construction which is now in liquidation. At the recommendation of Master Builders, [the victim] in this matter, engaged Mr Maitland’s company to carry out a bathroom renovation at her residential flat. That work was discussed between the pair and quoted on 1 October 2016.

PLUMBER GAS FITTER AND DRAINLAYER BOARD v GRANT MAITLAND [2019] NZDC 6211 [2 April 2019]

[3] The work to be attended to was effectively replacing old for new and involved a new shower over bath including a reline of that unit and a new mixer, replacement of a vanity unit, replacement of a toilet, tiling, gibstopping and painting.

[4] Mr Maitland told [the victim] that he and his team were qualified to do the plumbing work.

[5] The work started on 15 December. Mr Maitland and one of his staff attended the address to carry out the building and plumbing work. Following the completio n of the work by GJA Construction, [the victim] discovered that there were quality issues with the work. This included a leaking wastepipe from the newly installed vanity basin. A cable tie had been used to alter the angle of the wastepipe.

[6] [The victim] also experienced a high-pitched noise sounding from the shower over the bath when the water was turned on and water dripping from the showerhead when the bath was being run. The bath plug used was sink diameter rather than bath diameter causing slow draining. The tap installed on the vanity unit was a kitchen tap rather than a hand basin tap, meaning that it extended a greater distance out over the basin. [The victim] established that the tap was discontinued by Methven, which is a manufacturer of taps, and that the warranty had long since expired. Indeed, the tap itself would have been purchased prior to 2011.

[7] [The victim] initially raised concerns while the work was being carried out by the company and then addressed those in more detail by an email on 21 December 2016. Mr Maitland replied on 22 December advising that due to [the victim]’s exhaustive list of misgivings as to whether Mr Maitland could complete the work satisfactorily, he didn’t intent to carry out any further work. At some point the company staff entered [the victim]’s property without her permission and removed the job related items that remained there.

[8] On 3 January 2017 Mr Maitland advised [the victim] that he would be willing to complete the work as quoted as long as she paid a further $2000. [The victim] had by this time already paid a little over $5000. She advised him that the issue was with the remedial work required and that no further payments would be made.

[9] From that point on despite [the victim]’s continued efforts to resolve the situation and have the work completed, there was little communication from Mr Maitland, neither he nor any other person from GJA Construction returned to the property. In the end she engaged [a new plumbing company] to remedy some of the issues with Mr Maitland’s work.

[10] I have received a victim impact statement from [the victim]. It is a sad story in the sense that she simply wanted an overhaul of her bathroom and got a year of headaches trying to sort this matter out. She has incurred significant costs, although I am not quite sure the extent to which they can properly be attributable to Mr Maitland’s inadequacies and certainly I am not satisfied that they can all be attributed properly to his commission of this particular offence.

[11] I have also been provided with a disciplinary report from the Licensed Build ing Practitioners Tribunal. It seems that Mr Maitland was a licensed building practitione r authorised to do restricted building work. However his work in that regard was clearly substandard, some of which is captured by what I have read out in the summary of facts. He was fined $2,000 in that forum and ordered to pay $1000 in costs.

[12] Eventually a plea was entered in the days leading up to the Judge alone trial. That occurred when another charge was withdrawn and the summary of facts which I have read out was provided to the Court.

[13] To the best of my knowledge Mr Maitland does not have any prior convictio ns. I am informed by Ms Yardley, who appears for Mr Maitland today, that he is trying to re-establish himself with work up in the Auckland area. I should also mention at this point that his licenced building practitioners ticket was suspended for six months consequent upon his performance with [the victim].

[14] I have received submissions from the Plumbers, Gasfitters and Drainla yers Board via the Auckland Crown solicitor. They suggest a starting point of $2500 to

$3000 which represents 25 to 30 percent of the maximum available fine. They submit that there was a high degree of premeditation along with obvious inadequacies in the work and a significant emotional impact which I take as read and which has simply

been confirmed by the lengthy victim impact statement I have been provided. They accept a discount is available for plea.

[15] Mr Eason in his submissions has been somewhat more economical but ultimately says that a fine in the region of $500 should be imposed. He submits that the defendant is in parlous financial circumstances and therefore any fine will bite. I note, however, that I have not been provided any financial information at all in relation to him other than the general assertion that he is in difficult circumstances presently. Mr Eason has submitted that some of this work was not complete so to the extent there were inadequacies in it, they may well have been remedied.

[16] I need to hold Mr Maitland accountable for the harm he has caused. I need to take into account the interests of the victim. There are few things that would annoy and disappoint a person wanting to renovate a bathroom more than having a performance by a tradesperson such as that Mr Maitland was responsible for. As she says it caused endless nights of lost sleep, days off work trying to get remedial action first from Mr Maitland and then from other tradies. I need to deter him as well as others who might be tempted to undertake restricted areas of work when not qualified. I have taken into account the seriousness of this in comparison to other similar types of offences, the need for consistency and the impact on the victim.

[17] The aggravating features are several. First there is the harm that has been caused to the victim and associated with that the loss. Next there is the fact that as I read the summary of facts the defendant said he was qualified to do plumbing work when in fact he, and those with whom he worked, were not. It may well be that but for that deception he would never have been onsite and [the victim] would have been spared the anguish she has been put through. There are the defects in the work which are many and varied. There is the element of premeditation.

[18] Balanced against that I note the guilty plea as well as the lack of prior convictions which for current purposes I shall equate with a prior good character.

[19] I consider this to be a relatively serious breach. It was premeditated, the victim does appear on the face of the summary of facts to have been misled as to

Mr Maitland’s qualifications to undertake the work. He did work as a matter of fact that he was not entitled by law to do because it is restricted work, and not only did he do it, he did it in an abysmal fashion. The restricted area of work in some senses is relatively limited but it comes as part of a wider plumbing package including things such as installing mixers that were not working properly, incorrect taps, incorrect diameter drains, et cetera. I do not think it is right to simply look at the one or two areas of restricted work and say that the rest of the plumbing work which he undertook, and which ordinarily would have been undertaken by an appropriately skilled plumber, is irrelevant.

[20] In my view the starting point ought to be in the region of $4000. I am, however, prepared to moderate that by $1000 to take account of the fact that he has had to answer to the Licensed Building and Practitioners Tribunal in another forum. Whilst that work incorporated different work to the plumbing, and certainly the restricted plumb ing work, I do think some type of totality needs to be factored into the assessment.

[21] From that I am prepared to deduct 10 percent or $300 for the lack of previous record, which as I have said I will equate with prior good character and then I am prepared to deduct a further $500 for the guilty plea. That is relatively generous in the circumstances because the guilty plea was entered late but as I have noted it was consequent upon a withdrawal of another charge.

[22] That leaves an end point of $2200. I would ordinarily impose that by way of fine and impose reparation on top of that. But in view of Mr Maitland’s somewhat straightened circumstances, what I intend to do is to order that whole amount to be payable by way of reparation to the victim and impose that in lieu of a fine.

[23] So, the end sentence will be reparation of $2,200 to [the victim]. That is payable within the statutory period of 28 days unless some alternate arrangement is made by Mr Maitland. But I hope that at this eleventh hour he can do the decent thing and make that payment as a matter of urgency. Because of that I will not be imposing a fine.

There will also be Court costs of $130 and a solicitor ’s fee of $226.

Judge TJ Gilbert

District Court Judge

Date of authentication: 04/04/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.